Chapter: 221 CRIMINAL PROCEDURE ORDINANCE Gazette Number Version Date

Transcription

1 Chapter: 221 CRIMINAL PROCEDURE ORDINANCE Gazette Number Version Date Long title 30/06/1997 To consolidate and amend the laws relating to criminal procedure, evidence and practice. (Replaced 24 of 1950 Schedule) (Originally 13 of 1899; 14 of 1906; 31 of 1911; 17 of 1919; 14 of 1929 (Cap 221 of 1950)) [7 July 1899] Section: 1 Short title 30/06/1997 This Ordinance may be cited as the Criminal Procedure Ordinance. (Amended 5 of 1924 s. 6) Section: 2 Interpretation 10 of /07/2005 In this Ordinance, unless the context otherwise requires- "appellant" ( 上訴人 ) includes a person who has given notice of application for leave to appeal; (Added 34 of 1972 s. 2) "bailiff" ( 執達主任 ) means the bailiff of the court and includes any deputy of the bailiff; "Correctional Services Department Psychiatric Centre" ( 懲教署精神病治療中心 ) means the Correctional Services Department Psychiatric Centre set apart as a prison under section 4 of the Prisons Ordinance (Cap 234); (Added 37 of 1973 s. 7) "court" ( 法院 法庭 ) means the Court of First Instance acting in the exercise of its criminal jurisdiction; (Amended 25 of 1998 s. 2) "court of trial" ( 主審法院 主審法庭 ) in relation to an appeal means the court from which the appeal lies; (Added 34 of 1972 s. 2) "hospital order" ( 入院令 ) means an order made under section 45, 54 or 54A of the Mental Health Ordinance (Cap 136); (Added 34 of 1972 s. 2. Amended 37 of 1973 s. 7; 46 of 1988 s. 33; 81 of 1997 s. 59) "indictment" ( 公訴書 公訴程序 ) includes any criminal information triable by a jury; "medical superintendent" ( 院長 ) means the medical superintendent or an assistant medical superintendent of a mental hospital appointed under section 4 of the Mental Health Ordinance (Cap 136); (Added 34 of 1972 s. 2) "mental hospital" ( 精神病院 ) means any place declared to be a mental hospital under section 3 of the Mental Health Ordinance (Cap 136); (Added 34 of 1972 s. 2) "property" ( 財產 ) includes goods, chattels, money, valuable securities, and every other matter or thing, whether real or personal, upon or with reference to which any offence may be committed; "Registrar" ( 司法常務官 ) means the Registrar of the High Court; (Amended 10 of 2005 s. 178) "Rules Committee" ( 規則委員會 ) means the Criminal Procedure Rules Committee constituted under section 9; (Added 13 of 1995 s. 22) "specified form" ( 指明的表格 ) means a form specified by the Rules Committee under section 9(4); (Added 13 of 1995 s. 22) "under disability" ( 無行為能力 ), in relation to an accused person, means under any disability such that apart from this Ordinance it would amount to a bar to his being tried; (Added 34 of 1972 s. 2) "witness order" ( 證人令 ) means an order made under section 84(1) of the Magistrates Ordinance (Cap 227) and "conditional witness order" ( 附有條件的證人令 ) shall be construed accordingly; (Added 59 of 1981 s. 3) "witness summons" ( 證人傳票 ) means a summons issued under section 34. (Added 59 of 1981 s. 3) (Amended 50 of 1911 s. 4; 1 of 1912 Schedule; 21 of 1912 s. 2; 5 of 1924 s. 12 & Schedule) Cap CRIMINAL PROCEDURE ORDINANCE 1

2 Section: 3 (Repealed 39 of 1999 s. 3) 39 of /07/1997 Remarks: Adaptation amendments retroactively made - see 39 of 1999 s. 3 PART I BUSINESS OF THE COURT Section: 4 (Repealed 63 of 1971 s. 11) 30/06/1997 Section: 5 Bringing of prisoners before the court 30/06/1997 The Commissioner of Correctional Services shall, by himself or his deputy, bring each prisoner awaiting trial before the court when his case is called for trial, and during the continuance of the trial shall have him under his charge and custody, and remand him to prison, by permission or order of the court, during the progress of the trial or on any adjournment thereof. (Amended 1 of 1912 Schedule; 5 of 1924 s. 12; 25 of 1937 s. 3; G.N. 678 of 1938; 63 of 1971 s. 2) Section: 6 (Repealed 63 of 1971 s. 11) 30/06/1997 Section: 7 Assistance by police 30/06/1997 The police shall afford such assistance as may be necessary to enable the Commissioner of Correctional Services to comply with the requirements of section 5. (Amended 50 of 1911 s. 4; 5 of 1924 ss. 8 & 12; 25 of 1937 s. 3; G.N. 678 of 1938; 63 of 1971 s. 3) Section: 8 (Repealed 63 of 1971 s. 11) 30/06/1997 Section: 9 Rules and orders as to practice and procedure 10 of /07/2005 (1) Rules and orders regulating the practice and procedure under this Ordinance shall be made by the Criminal Procedure Rules Committee, which shall consist of- (a) the Chief Judge, who shall be chairman; (Amended 10 of 2005 s. 9) (b) a Justice of Appeal appointed by the Chief Judge; (Amended 10 of 2005 s. 9) (c) a judge of the Court of First Instance appointed by the Chief Judge; (Amended 25 of 1998 s. 2; 10 of 2005 s. 9) (d) the Secretary for Justice or a legal officer nominated by him; (Amended L.N. 362 of 1997) (e) the Director of Legal Aid or a legal aid officer nominated by him; (f) a barrister nominated by the Hong Kong Bar Association; (g) a solicitor nominated by The Law Society of Hong Kong; (h) the Registrar, or a Senior Deputy Registrar or Deputy Registrar of the High Court appointed by the Chief Judge, who shall be secretary. (Replaced 13 of 1995 s. 23. Amended 10 of 2005 ss. 9 & 179) (1A) Rules and orders made by the Rules Committee shall not have effect until approved by the Legislative Council and published in the Gazette. (Added 13 of 1995 s. 23) (2) Such rules and orders may provide for the times for or within which documents must be filed or notices given, the duties of the various officers of the court, the manner in which cases and arguments are to be presented, and generally for the better carrying out of the provisions of this Ordinance. (Amended 24 of 1950 Schedule; 15 of 1969 s. 2; 13 of 1995 s. 23) Cap CRIMINAL PROCEDURE ORDINANCE 2

3 (3) Subject to the provisions of this Ordinance and to such rules and orders and any other enactment (including any enactment relating to juries) applicable thereto, the practice and procedure in all criminal causes and matters (including trials for treason or misprision of treason) shall be, as nearly as possible, the same as the practice and procedure from time to time and for the time being in force for similar cases in England. (4) The Rules Committee may, by notice in the Gazette, specify forms for use under this Ordinance, and such forms shall be adhered to with such variations and additions as may be necessary. (Added 13 of 1995 s. 23) (Replaced 5 of 1933 s. 2) Section: 9A Legal aid in criminal cases 30/06/1997 (1) Subject to subsection (1A), the Rules Committee may, with the approval of the Legislative Council, make rules providing for the granting of legal aid in criminal cases to persons of limited means which rules, in particular, may- (Amended 13 of 1995 s. 24; 37 of 1996 s. 2) (a) make provision as to the information to be given by a person seeking or receiving legal aid; (b) make provision as to the manner in which the rate of a person's disposable income and the amount of his disposable capital are to be computed for the purpose of the rules and the person or authority by whom such computation shall be made; (c) determine whether any resources are to be treated as disposable income or disposable capital and for taking into account fluctuations of income; (d) determine the contribution towards costs and expenses to be made by a person receiving legal aid; (e) determine the extent to which any resources of a person's husband or wife shall be treated as that person's resources for the purpose of the rules; (f) provide, in relation to infants and in other special cases, for taking into account the resources of other persons; (g) prescribe the scale of fees and costs which shall be paid to solicitor or counsel acting for an aided person (or submitting any opinion for the purpose of the rules); (h) prescribe any forms to be used for the purpose of the rules. (1A) Rules may be made under subsection (1) for the granting of legal aid to accused persons who are not represented by counsel or solicitor (and whether or not such persons are of limited means) for the purposes of assisting the court, within the meaning of section 75(6), in its consideration of the question of fitness to be tried of such persons. (Added 37 of 1996 s. 2) (2) The expenses of legal aid granted under such rules shall be met from moneys provided by the Legislative Council. (Added 15 of 1969 s. 3)(See also Cap 91 s. 28(2)) Section: 9B Rules for payment of allowance to witnesses 30/06/1997 (1) The Rules Committee may, with the approval of the Legislative Council, make rules providing for the payment of an allowance to witnesses in criminal proceedings before any court, and such rules may, in particular, provide for- (Amended 13 of 1995 s. 25) (a) the classification of witnesses; (b) the payment of different rates of allowance to different classes of witnesses; and (c) the rate of allowance which may be paid to witnesses in a particular class. (2) The expenses of the allowances paid under such rules shall be met from moneys provided by the Legislative Council. (3) In this section- (a) "court" ( 法庭 ) includes the District Court and a magistrate; (b) "witness" ( 證人 ) means any person properly attending a court to give evidence, whether or not called to give evidence at the instance of the court, and whether or not he gives evidence, and includes- (i) a person who conducts a prosecution under section 14 of the Magistrates Ordinance (Cap 227) and obtains an order for costs under section 69 of that Ordinance; and (ii) a defendant who obtains an order for costs under section 73A, or section 69 of the Magistrates Ordinance (Cap 227), but does not include a person who is- Cap CRIMINAL PROCEDURE ORDINANCE 3

4 (A) a police officer attending court in the course of his duties; (B) an officer of the Correctional Services Department attending court in the course of his duties; or (C) a prisoner in respect of any occasion on which he is conveyed to court in custody. (Replaced 6 of 1990 s. 2) (Added 56 of 1971 s. 2) Section: 9C Interpretation 25 of 1998 s. 2 01/07/1997 Remarks: Amendments retroactively made - see 25 of 1998 s. 2 PART IA BAIL In this Part- "admitted to bail" ( 獲准保釋 准予保釋 ) means the release by a court of a person from detention on his undertaking that he shall surrender to custody on the day that the court may appoint; "court" ( 法院 法庭 ) includes the District Court and a magistrate; "judge" ( 法官 ) means a Justice of Appeal, a judge of the Court of First Instance and a deputy judge of the Court of First Instance; (Replaced 25 of 1998 s. 2) "surrender to custody" ( 歸押 ) means appearing before the court on being called on the day as shall have been appointed by the court. (Added 56 of 1994 s. 2) Section: 9D Right of accused person to be admitted to bail 30/06/1997 (1) Subject to this section and section 9G, a court shall order an accused person to be admitted to bail, whether he has been committed for trial or not, when- (a) he appears or is brought before a court in the course of or in connection with proceedings for the offence of which he is accused; or (b) he applies to the court before which he is accused to be admitted to bail; or (c) he applies to a judge under section 9J to be admitted to bail. (2) An order under subsection (1) may be subject to such conditions as appear to the court to be necessary to secure that the person admitted to bail will not- (a) fail to surrender to custody as the court may appoint; or (b) commit an offence while on bail; or (c) interfere with a witness or pervert or obstruct the course of justice. (3) Without affecting the generality of subsection (2), the court- (a) may not make it a condition of admission to bail that a recognizance of bail be taken from the person so admitted but may make it a condition, for the purpose only of securing the surrender of that person to custody as the court may appoint, that a recognizance of bail be taken from a surety; (b) may make it a condition of admission to bail that the person so admitted- (i) shall surrender to the court any passport or travel document; (ii) shall not leave Hong Kong; (iii) shall report to a police station or the offices of the Independent Commission Against Corruption as the court may specify; (iv) shall reside at a specified address and be present therein between such times as the court may specify; (v) shall not enter any place or premises as the court may specify; (vi) shall not go within such distance of any place or premises as the court may specify; (vii) shall not contact directly or indirectly such person as the court may specify; (viii) or any person on his behalf or he and any such person shall, for the purpose only of securing the surrender to custody of the person admitted to bail as the court may appoint, deposit with the Cap CRIMINAL PROCEDURE ORDINANCE 4

5 court such reasonable sum of money as the court may require. (4) In considering the suitability of a surety for a proposed recognizance of bail under subsection (3)(a), the court shall have regard to- (a) the surety's financial resources; (b) any other matter that appears to the court to be relevant, and any recognizance of bail taken from a surety under that subsection may, if an order under subsection (1) so directs, be taken before any magistrate or before the Commissioner of Correctional Services, the Deputy Commissioner of Correctional Services or a Senior Superintendent or Superintendent of Correctional Services. (Added 56 of 1994 s. 2) Section: 9E Relief from obligation as surety 30/06/1997 (1) If on application made to it by a surety from whom a recognizance of bail has been taken a court is satisfied that the surety has reasonable cause to believe that the person for whom he is surety will not surrender to custody as shall have been appointed by the court, the court may order that he be relieved of his obligations as a surety. (2) On the making of an order under subsection (1), the court shall issue a warrant for the arrest of the person for whom the surety was provided. (Added 56 of 1994 s. 2) Section: 9F Prohibition against agreements to indemnify surety 30/06/1997 (1) Any agreement indemnifying or purporting to indemnify any person against any liability which he may incur as a surety to secure the surrender to custody of a person admitted to bail shall be void. (2) Any person who enters into an agreement of the description mentioned in subsection (1) commits an offence. (3) An offence under subsection (2) is committed whether the agreement is entered into before or after the person to be indemnified becomes a surety and whether or not he becomes a surety and whether the agreement contemplates compensation in money or money's worth. (4) Any person who commits an offence under subsection (2) is liable on summary conviction to a fine of $75000 and to imprisonment for 6 months, and on conviction upon indictment to a fine of any amount and to imprisonment for 12 months. (Added 56 of 1994 s. 2) Section: 9G An accused person may be refused bail in particular circumstances 30/06/1997 (1) The court need not admit an accused person to bail if it appears to the court that there are substantial grounds for believing, whether or not an admission were to be subject to conditions under section 9D(2), that the accused person would- (a) fail to surrender to custody as the court may appoint; or (b) commit an offence while on bail; or (c) interfere with a witness or pervert or obstruct the course of justice. (2) The court in forming an opinion under subsection (1) may have regard to- (a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with; (b) the behaviour, demeanour and conduct of the accused person; (c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person; (d) the health, physical and mental condition and age of the accused person; (e) the history of any previous admissions to bail of the accused person; (f) the character, antecedents and previous convictions, if any, of the accused person; (g) the nature and weight of the evidence of the commission of the alleged offence by the accused person; (h) any other thing that appears to the court to be relevant. (3) An accused person need not be admitted to bail if it appears to the court that he should be detained in custody for- Cap CRIMINAL PROCEDURE ORDINANCE 5

6 (a) if he has attained the age of 18 years, his own protection; or (b) if he has not attained the age of 18 years, his own protection, safety or welfare; or (c) the purpose of further inquiry relating to the determining of the question of whether he should be admitted to bail. (4) An accused person need not be admitted to bail if- (a) he is detained in custody- (i) under a sentence of any court; or (ii) for or in connection with a charge of failing to surrender to custody under section 9L; or (b) the court is satisfied that- (i) he has previously failed to comply with any condition of bail imposed under section 9D; or (ii) any other court dealing with him in the same proceedings is or has been so satisfied. (5) An accused person need not be admitted to bail if he is the subject of a hospital order for the time being in force. (6) An accused person need not be admitted to bail if he is the subject of an order made under section 109B (suspended sentence) for the time being in force and he is before the court under section 109D or 109E. (7) An accused person need not be admitted to bail if he is the subject of a deportation order for the time being in force made under section 20 of the Immigration Ordinance (Cap 115). (8) An accused person need not be admitted to bail if he is before the court under section 5 or 6 of the Probation of Offenders Ordinance (Cap 298) (breach of probation order; or commission of further offence). (9) An accused person need not be admitted to bail if he is before the court under section 8 or 9 of the Community Service Orders Ordinance (Cap 378) (breach of community service order; or commission of further offence). (10) An accused person charged with- (a) murder; or (b) treason under section 2 of the Crimes Ordinance (Cap 200), shall be admitted to bail only upon the order of a judge. (11) If at any hearing the court refuses to admit an accused person to bail the court shall, at each subsequent hearing while the accused remains in custody, consider the question of whether or not he ought to be admitted to bail and- (a) on the first occasion after that upon which the court first refused to so admit, the court shall hear any argument as to fact or law put to it in support of his admission to bail, whether or not it has previously heard that argument; (b) on the second or any subsequent occasion after that upon which the court first refused to so admit, the court need not hear any argument as to fact or law put to it in support of his admission to bail, if it has previously heard that argument. (Added 56 of 1994 s. 2) Section: 9H Application by Secretary for Justice for review of admission to bail by a District Judge or magistrate L.N. 362 of /07/1997 (1) Where a District Judge or magistrate has admitted any person to bail the Secretary for Justice may apply to a judge to review the decision of the District Judge or magistrate. (Amended L.N. 362 of 1997) (2) Subject to section 9I(3), an application under subsection (1) shall be made by summons before a judge in chambers and supported by affidavit. (3) The summons may be served on the person admitted to bail at any time before the time appointed therein for the hearing. (4) On the hearing of the application the Secretary for Justice shall be entitled to put before the judge such relevant argument and such relevant matter as he thinks proper, whether or not the same was before the District Judge or magistrate who made the decision, and the person admitted to bail shall also be entitled to be heard. (Amended L.N. 362 of 1997) (5) Notwithstanding subsection (4), if the person admitted to bail fails to appear a judge may hear and determine the application in the absence of the person if he is satisfied that the person has been served with the summons or has refused to accept service of the summons or that all reasonable attempts have been made to serve the summons. (6) Where a judge has heard an application under this section in the absence of the person admitted to bail, he Cap CRIMINAL PROCEDURE ORDINANCE 6

7 may rehear the application if he is satisfied that it is just to do so. (7) Upon hearing the application, a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just. (8) On the revocation or variation of a decision of the District Judge or magistrate under subsection (7), a judge may issue a warrant for the arrest of the person admitted to bail. (9) No appeal shall lie from the decision of a judge on an application under this section. (Added 56 of 1994 s. 2) Section: 9I Custody pending review L.N. 362 of /07/1997 (1) Where a District Judge or magistrate has made an order admitting any person to bail but the Secretary for Justice states that he wishes to apply for a review of his decision under section 9H, he shall upon application by the Secretary for Justice if the person so admitted is present, order that the person be detained in custody and be brought before a judge at such time and place as the Registrar may appoint. (Amended L.N. 362 of 1997) (2) Where a District Judge or magistrate makes an order under subsection (1) he shall immediately notify the Registrar who shall cause the person so detained to be brought before a judge as soon as practicable, and in any event within 48 hours, and inform the Secretary for Justice of the time and place at which that will be done. (Amended L.N. 362 of 1997) (3) When the person so detained is brought before him under this section, a judge may, if he thinks fit, dispense with the requirements of section 9H(2) and (3) and proceed to hear an application under section 9H(1). (4) If the judge declines to dispense with the requirements of section 9H(2) and (3), he shall order the person so detained to be kept in custody for such time as he deems sufficient to enable section 9H(2) and (3) to be complied with, and may make such other order as he thinks just. (Added 56 of 1994 s. 2) Section: 9J Review of refusal of bail or conditions of bail 30/06/1997 (1) Where a District Judge or magistrate has refused to admit a person to bail or has so admitted a person subject to any condition, that person may in the case of a refusal, apply to a judge to be admitted to bail or in the case of an admission to bail subject to any condition, apply to a judge to be admitted to bail without bail being subject to that condition. (2) On the hearing of an application under subsection (1), a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just. (Added 56 of 1994 s. 2) Section: 9K Arrest of persons admitted to bail 30/06/1997 (1) A police officer may without warrant arrest and detain any person admitted to bail if- (a) the police officer has reasonable grounds for believing that any condition on or subject to which such person was admitted to bail has been or is likely to be broken; or (b) any police officer has been notified in writing by any surety from whom a recognizance of bail has been taken for that person that the surety believes that that person is likely to fail to surrender to custody as shall have been appointed by a court and for that reason the surety wishes to be relieved of his obligations as surety. (2) Any person arrested under subsection (1) shall be brought within 24 hours after his arrest or as soon as practicable thereafter before a magistrate except where he was so arrested within the period of 24 hours immediately preceding an occasion on which he is required by virtue of his bail to surrender to custody at any court, in which case he shall be brought before that court. (3) If it appears to the court before which a person is brought under subsection (2) that any condition of admission to bail has been or is likely to be broken, the court may- (a) order that that person be detained in custody; or (b) admit that person to bail on the same conditions or on such other conditions as it thinks fit, but if it does not so appear to that court, the court shall release that person from custody and admit him to bail on the same conditions. Cap CRIMINAL PROCEDURE ORDINANCE 7

8 (Added 56 of 1994 s. 2) Section: 9L Offence of failing to surrender to custody as shall have been appointed 30/06/1997 (1) A person admitted to bail who, without reasonable cause, fails to surrender to custody as shall have been appointed by a court, commits an offence. (2) A person admitted to bail who, having reasonable cause therefor, has failed to surrender to custody at such time as shall have been appointed by a court, fails to so surrender as soon after that time as is reasonably practicable, commits an offence. (3) Any person who commits an offence under subsection (1) or (2) is liable on summary conviction to a fine of $75000 and to imprisonment for 6 months, and on conviction upon indictment to a fine of any amount and to imprisonment for 12 months. (4) Where an offence under subsection (1) or (2) is alleged to have been committed, a court, in the exercise of jurisdiction under this section, may deal with an accused person summarily without a jury and may deal with the case without a charge having been transferred under Part IV of the Magistrates Ordinance (Cap 227) or the case having been committed for trial under Part III of that Ordinance. (Added 56 of 1994 s. 2) Section: 9M Forfeiture on failure to surrender to custody as shall have been appointed 39 of /07/1997 Remarks: Adaptation amendments retroactively made - see 39 of 1999 s. 3 (1) If a person admitted to bail fails, without reasonable cause, to surrender to custody as shall have been appointed by a court, a court may, whether or not that person has been convicted of an offence under section 9L(1), order that the whole of part of any- (a) recognizance of bail taken from a surety under section 9D(3)(a); or (b) sum of money deposited with the court under section 9D(3)(b)(viii), for the purpose of securing his surrender to custody shall be forfeited to the Government. (Amended 39 of 1999 s. 3) (2) Where a court makes an order under subsection (1), the payment of any sum due as security for a recognizance of bail taken from a surety under section 9D(3)(a) may be enforced as if it were a security to which section 64 of the Magistrates Ordinance (Cap 227) applies. (Added 56 of 1994 s. 2) Section: 9N Procedure in bail proceedings 30/06/1997 In any bail proceedings- (a) the court may, subject to paragraph (b), make such inquiries of and concerning the person being the subject of those proceedings as the court considers desirable; (b) the person being the subject of those proceedings shall not be examined or cross-examined by the court or by any other person as to the alleged offence with which he is charged and no inquiry shall be made of him as to that offence alleged; (c) the informant or prosecutor or any person appearing on behalf of the prosecution may, in addition to any other relevant evidence, submit evidence, whether by affidavit or otherwise- (i) to prove that the person being the subject of those proceedings has previously been convicted of a criminal offence; (ii) to prove that the person being the subject of those proceedings has been charged with and is awaiting trial on another criminal offence; (iii) to prove that the person being the subject of those proceedings has previously failed to surrender to custody; (iv) to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the person being the subject of those proceedings; (d) the court may take into consideration any relevant matters agreed upon by the informant or prosecutor Cap CRIMINAL PROCEDURE ORDINANCE 8

9 and the person being the subject of those proceedings or his counsel; and (e) the court may receive and take into account any other material or representations which it considers credible or trustworthy in the circumstances. (Added 56 of 1994 s. 2) Section: 9O Aids in proof 30/06/1997 For the purpose of bail proceedings, a certificate purporting to be certified by a clerk of the court which has admitted a person to bail and stating- (a) that the person named in the certificate has been admitted to bail; (b) the day and time, if any, that the person named in the certificate has undertaken to surrender to custody; (c) where admission to bail is subject to conditions under section 9D(2), what those conditions are; (d) that the person named in the certificate has been given notice of such conditions, if any, shall be evidence of the facts so stated and shall be received in evidence without further proof. (Added 56 of 1994 s. 2) Section: 9P Restriction on reports of bail proceedings L.N. 362 of /07/1997 (1) Unless it appears to the court that the interests of public justice otherwise require, no person shall publish in Hong Kong a written report, or broadcast in Hong Kong a report, of any bail proceedings containing any matter other than that permitted under subsection (2). (2) A report of bail proceedings may contain- (a) the name of the person being the subject of those proceedings; (b) the offence with which the person being the subject of those proceedings is charged; (c) the identity of the court and the name of the magistrate, District Judge or judge, as the case may be; (d) the names of counsel and solicitors, if any, engaged in the bail proceedings; (e) the result of the bail proceedings and where the person being the subject of those proceedings is admitted to bail subject to any condition under section 9D(2), the details of any such condition; (f) where the bail proceedings are adjourned, the date and place to which they are adjourned. (3) If a report is published or broadcast in contravention of this section, the following persons- (a) in the case of publication of a written report as part of a newspaper or periodical publication, any proprietor, editor, publisher or distributor thereof; (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical publication, the person who publishes or distributes it; (c) in the case of a broadcast of a report, any person who transmits or provides the programme in which the report is broadcast and any person having functions in relation to the programme corresponding to those of the editor of a newspaper or periodical publication, shall be guilty of an offence and shall be liable on conviction to a fine of $50000 and to imprisonment for 6 months. (4) Proceedings for an offence under this section shall not be instituted otherwise than by or with the consent of the Secretary for Justice. (Amended L.N. 362 of 1997) (5) In this section- "broadcast" ( 廣播 ) means sounds or visual images broadcast by wireless telegraphy or by means of a high frequency distribution system over wires, or other paths provided by a material substance and intended for general reception; "publish" ( 發布 ), in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical publication, for distribution to the public. (Added 56 of 1994 s. 2) Section: 9Q Record of bail proceedings 30/06/1997 A record of all bail proceedings shall be maintained in such manner and form as may be prescribed by rules and orders made for the purposes of this section under section 9 and shall be made available to an accused person and to counsel and solicitors to such extent and on such terms as may be prescribed. Cap CRIMINAL PROCEDURE ORDINANCE 9

10 (Added 56 of 1994 s. 2) Section: 10 Power to refer back to be dealt with summarily L.N. 362 of /07/1997 PART II PROCEEDINGS PRELIMINARY TO TRIAL Referring back of case If after receipt of the documents referred to in section 86(1) of the Magistrates Ordinance (Cap 227) the Secretary for Justice is of opinion that the accused person should not have been committed for trial but that the case should have been dealt with summarily, the Secretary for Justice may, at any time after such receipt, but before an indictment is preferred, refer back the case to the magistrate with directions to deal with the case accordingly, and with such other directions as he may think proper. (Amended 1 of 1912 Schedule; 6 of 1954 s. 4; 59 of 1992 s. 2; L.N. 362 of 1997) Section: 10A Service of documents in transferred proceedings L.N. 362 of /07/1997 (1) Where pursuant to an order for transfer made under section 77A of the District Court Ordinance (Cap 336) (in this section referred to as an "order of transfer") any proceedings stand transferred to the court for trial under subsection (6) of that section and where the Secretary for Justice has instituted proceedings pursuant to section 14(1)(aa), he shall, not more than 21 days after an indictment is preferred against the accused person, but subject to subsection (2), deliver to the Registrar and, unless they have already been served, serve on the accused person- (Amended L.N. 362 of 1997) (a) a copy of the indictment; (b) copies of the statements of those witnesses whom the prosecution intends to call at the trial; (c) copies of all documentary exhibits; and (d) a list of the exhibits. (2) Where the Secretary for Justice considers that it will not be practicable to comply with the requirements in subsection (1) within the period specified in that subsection, he may apply- (Amended L.N. 362 of 1997) (a) upon the making of the order of transfer, to the District Court judge who makes the order; or (b) at least 21 days before the date fixed for trial, to a judge, for an extension of that period, and the District Court judge or the judge, as the case may be, may, if he is satisfied that the accused person is not prejudiced thereby, grant such extension as he considers reasonable. (3) A statement of a witness referred to in subsection (1)(b) shall- (a) be signed by the person making it; (b) contain a declaration by the witness to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that wilfully making a statement which he knows to be false or does not believe to be true may render him liable for a criminal prosecution; (c) if in a language other than English, be accompanied by an English translation and, if in a language other than Chinese, by a Chinese translation; (d) if made by a person under 21, give his age; and (e) purport to have been read over to the person who made the statement in the language used by that person in making the statement or to have been read by that person. (4) A documentary exhibit referred to in subsection (1)(c) shall, if written in a language other than English, be accompanied by an English translation certified under section 27 of the Evidence Ordinance (Cap 8) and, if written in a language other than Chinese, be accompanied by a Chinese translation, unless on an application made in the District Court the District Judge or, on an application made in the court, the judge, directs otherwise on cause shown. (5) An exhibit which is mentioned in a list of exhibits referred to in subsection (1)(d) shall be clearly identified in a statement of a witness referred to in subsection (1)(b) and the accused person or his counsel or solicitor shall be given reasonable opportunity to examine such exhibit. (6) Failure to comply with any requirement in subsection (3), (4) or (5) shall not render the service of any documents under subsection (1) or (2) ineffective unless the judge is satisfied that the accused person is prejudiced by such failure. Cap CRIMINAL PROCEDURE ORDINANCE 10

11 (Added 59 of 1992 s. 3) Section: 10B Discharge of the accused L.N. 362 of /07/1997 (1) Where the Secretary for Justice fails to comply with the requirements of section 10A(1) within the period specified in that section or where an extension has been granted under section 10A(2), within such extended period- (Amended L.N. 362 of 1997) (a) on the date appointed for the commencement of the trial or where that date is adjourned, on such later date, the court shall, on its own motion; or (b) where, before the day appointed for the commencement of the trial or if that date is adjourned, before such later date, the accused person applies to a judge for his discharge on the ground of such failure, the judge shall, direct that the accused person be discharged in respect of the charges to which the transferred proceedings relate. (2) A discharge under subsection (1) shall be deemed to be an acquittal. (Added 59 of 1992 s. 3) Section: 11 Power to refer back for further inquiry L.N. 362 of /07/1997 (1) At any time after the receipt of the documents relating to the case and before the trial of the accused person, the Secretary for Justice may refer back the case to the magistrate with directions to reopen the inquiry for the purpose of taking evidence or further evidence on a certain point or points to be specified, and with such other directions as he may think proper. (Amended 1 of 1912 Schedule; 6 of 1954 s. 5) (2) Subject to any express directions which may be given by the Secretary for Justice, the effect of any such reference back to the magistrate shall be that the inquiry shall be reopened and dealt with in all respects as if the accused person had not been committed for trial. (Amended L.N. 362 of 1997) Section: 12 Further provisions as to referring back L.N. 362 of /07/1997 (1) Any direction given by the Secretary for Justice under section 10 or 11 shall be in writing, signed by him, and shall be complied with by the magistrate. (2) The Secretary for Justice may at any time add to, alter, or revoke any such direction. (3) The Secretary for Justice shall transmit forthwith copies of any such direction to the Registrar and to the Commissioner of Correctional Services, and on receipt of a copy of any such direction, the Registrar shall transmit to the committing magistrate all documents in the case that are in his possession or control. (Replaced 6 of 1954 s. 6) (4) When the Secretary for Justice directs that a case shall be dealt with summarily under section 10 or that an inquiry shall be reopened under section 11, the following provisions shall have effect- (a) where the accused person is in custody, the magistrate may, by an order in writing under his hand, direct the Commissioner of Correctional Services to convey him or cause him to be conveyed to the place where such proceedings are to be held, for the purpose of being dealt with as the magistrate may direct; (b) where the accused person is on bail, the magistrate shall issue a summons for his attendance at the time and place when and where such proceedings are to be held; and (c) thereafter the proceedings shall be continued under the provisions of Part III or of Part V of the Magistrates Ordinance (Cap 227), as the case may be. (Amended 50 of 1911 s. 4; 5 of 1924 s. 8; L.N. 362 of 1997) Section: 12A (Repealed 56 of 1994 s. 4) 30/06/1997 Section: 12B (Repealed 56 of 1994 s. 4) 30/06/1997 Cap CRIMINAL PROCEDURE ORDINANCE 11

12 Section: 12C (Repealed 56 of 1994 s. 4) 30/06/1997 Section: 13 (Repealed 56 of 1994 s. 4) 30/06/1997 Section: 13A (Repealed 56 of 1994 s. 4) 30/06/1997 Section: 13AA (Repealed 56 of 1994 s. 4) 30/06/1997 Section: 13B (Repealed 56 of 1994 s. 4) 30/06/1997 Section: 14 Institution of proceedings by Secretary for Justice L.N. 362 of /07/1997 Institution of proceedings (1) The Secretary for Justice, if he sees fit to institute criminal proceedings, shall institute such proceedings in the court against the accused person as to him may seem legal and proper- (Amended L.N. 362 of 1997) (a) in the case of a committal for trial under section 80C(4) of the Magistrates Ordinance (Cap 227), within 7 days of such committal; (aa) in any case where pursuant to an order of transfer made under section 77A of the District Court Ordinance (Cap 336), proceedings stand transferred to the court for trial under subsection (6) of that section, within 21 days of the order; and (Added 59 of 1992 s. 4) (b) in any other case, on receipt of the documents relating to the case. (2) Subject to section 16, no court shall inquire into whether or not proceedings have been instituted within the period specified in subsection (1)(a) or (aa). (Replaced 48 of 1983 s. 4. Amended 59 of 1992 s. 4) Section: 14A Trial of offences 30/06/1997 (1) Where any provision in any Ordinance creates, or results in the creation of, an offence, the offence shall be triable summarily only, unless- (a) the offence is declared to be treason; (b) the words "upon indictment" or "on indictment" appear; or (Amended L.N. 54 of 1989) (c) (Repealed 50 of 1991 s. 4(1)) (d) the offence is transferred to the District Court in accordance with Part IV of the Magistrates Ordinance (Cap 227). (Added 16 of 1970 Schedule) (2) Where any provision in any Ordinance creates, or results in the creation of, an offence and- (a) the offence is declared to be treason; or (b) subject to subsection (4), the words "upon indictment" or "on indictment" appear, the offence shall be triable only upon indictment. (3) (Repealed 50 of 1991 s. 4(1)) (4) Where any provision in any Ordinance creates, or results in the creation of, an offence and the offence is declared to be triable either summarily or upon indictment or to be punishable on summary conviction or on indictment, the offence shall be triable either on indictment or summarily. (5) Nothing in this section shall affect- (a) the powers conferred upon a magistrate by the Magistrates Ordinance (Cap 227) or by any other law to try an indictable offence summarily; or (b) the powers conferred upon the District Court by any law to try indictable offences. (Amended 50 of 1991 s. 4(1)) Cap CRIMINAL PROCEDURE ORDINANCE 12

13 Note: This provision previously appeared in s. 89 of Cap 1. By virtue of 89 of 1993 s. 27, it was re-enacted as s. 14A of this Ordinance. Section: 14B Prosecution of offences L.N. 362 of /07/1997 Where any Ordinance provides that no prosecution for an offence shall be commenced without the consent of some person other than the Secretary for Justice, such a provision shall not derogate from the powers of the Secretary for Justice in respect of the prosecution of that offence. (Added 54 of 1969 s. 7. Amended L.N. 362 of 1997) Note: This provision previously appeared in s. 91A of Cap 1. By virtue of 89 of 1993 s. 27, it was re-enacted as s. 14B of this Ordinance. Section: 15 Right of Secretary for Justice not to prosecute L.N. 362 of /07/1997 (1) The Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference. (2) Whenever the Secretary for Justice declines to file an indictment against any person committed to prison for trial for any indictable offence he may issue a warrant in Form 1 in Schedule 1 to the Registrar, who shall thereupon, unless the person in question has been admitted to bail, by order under his hand and the seal of the court, in Form 2 in Schedule 1, direct the person in whose custody the prisoner may be immediately to discharge him without any fee from imprisonment in respect of the offence mentioned in such order. (5 of 1904 s. 2 incorporated. Amended 50 of 1911 s. 4; 51 of 1911; 1 of 1912 Schedule; 2 of 1912 Schedule; 17 of 1930 s. 4; 58 of 1994 s. 4) (Amended 8 of 1912 s. 52; L.N. 362 of 1997) Section: 16 Discharge of accused after committal without a hearing L.N. 362 of /07/1997 Discharge of accused (1) Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap 227) or proceedings stand transferred to the court for trial under section 77A(6) of the District Court Ordinance (Cap 336), the accused may at any time- (a) if the Secretary for Justice does not institute proceedings within the period specified in section 14(1)(a) or (aa), as the case may be, after the expiration of that period; or (b) after the filing of the indictment and prior to his arraignment thereon, (Amended L.N. 395 of 1983) apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge. (Amended 59 of 1992 s. 5; L.N. 362 of 1997) (2) If an application is made under subsection (1) in the circumstances specified in paragraph (a) thereof- (a) the judge may, of his own motion or on the application of the accused, require the Secretary for Justice to file indictment within such time, and on such terms (if any) as to costs as may be specified in the order; (b) subject to any order under paragraph (a), the Secretary for Justice may at any time after an application is made under subsection (1), and before the final determination thereof, file an indictment, but the judge may award costs against him if the applicant has incurred any costs by reason of the late filing of the indictment. (Amended L.N. 362 of 1997) (3) The judge may after perusal of the documents and after hearing any representations which the accused and the Secretary for Justice may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged. (Amended L.N. 362 of 1997) (4) Subject to section 81E(3), a discharge under this section shall be deemed to be an acquittal. Cap CRIMINAL PROCEDURE ORDINANCE 13

14 (5) An accused who has made an application under subsection (1) and thereafter abandons or does not proceed with his application, may not make a further application or have the application previously made by him reinstated. (6) Where an indictment has been filed references in this section to the charge shall be construed as references to the charge as set out in the indictment. (7) Without derogation from the generality of its powers under section 9 the Rules Committee may make rules under that section for regulating and restricting written or broadcast reports of proceedings under this section or section 79G or 81E. (Amended 13 of 1995 s. 26; 69 of 1995 s. 2) (8) Section 87A(8) and (9) of the Magistrates Ordinance (Cap 227) shall apply to a contravention of rules under section 9 as read with subsection (7) of this section as they do to a report published or broadcast in contravention of section 87A. (Added 48 of 1983 s. 4) Section: 17 Signing of indictments L.N. 362 of /07/1997 Indictment (1) Every indictment shall be signed by the Secretary for Justice, and shall bear date on the day when it is signed. (Amended L.N. 362 of 1997) (2) (Repealed 35 of 1976 s. 6) Section: 18 Joinder of charges in the same indictment 30/06/1997 (1) Subject to the provisions of the rules under this Ordinance, charges for more than one offence may be joined in the same indictment. (Replaced 50 of 1991 s. 4) (2) If one sentence is passed upon any verdict of guilty on an indictment containing more counts than one, the sentence shall be good if any of the counts upon which such verdict has been returned would have justified such sentence. (17 of 1919 s. 5 incorporated) [cf c. 90 s. 4 U.K.] Section: 19 Offence committed on high seas or in any place outside Hong Kong Remarks: Adaptation amendments retroactively made - see 23 of 1998 s. 2; 39 of 1999 s of 1998; 39 of /07/1997 In any indictment for an offence committed on the high seas or in any place outside Hong Kong, an allegation that the person injured was, at the time of the offence charged, within the jurisdiction of the Hong Kong courts shall be a sufficient allegation of the jurisdiction of the court to hear and determine the case. (Amended 23 of 1998 s. 2; 39 of 1999 s. 3) Section: 20 Averment as to money or bank note 39 of /07/1997 Remarks: Adaptation amendments retroactively made - see 39 of 1999 s. 3 In any indictment in which it is necessary to make an averment as to any money or any bank note, it shall be sufficient to describe such money or bank note simply as money without specifying any particular coin or bank note; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin or of any bank note, although the particular species of coin of which such amount was composed, or the particular nature of the bank note, is not proved. (Amended 34 of 1972 s. 4; 39 of 1999 s. 3) Cap CRIMINAL PROCEDURE ORDINANCE 14

15 Section: 21 Charge of previous conviction 30/06/1997 In any court charging the accused person with having been previously convicted, it shall be sufficient to state that the accused person was, at a certain time and place, convicted of an offence punishable on summary conviction or on indictment, as the case may be, without further describing the offence. (Amended 50 of 1991 s. 4) Section: 22 General provision as to matters not necessary to be alleged, etc. 30/06/1997 No indictment shall be held insufficient for want of the averment of any matter unnecessary to be proved, or for that any person mentioned in the indictment is designated by a name of office or other descriptive appellation instead of his proper name, or for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, or for stating the time imperfectly, or for stating the offence to have been committed on a day subsequent to that of the indictment, or on an impossible day, or on a day that never happened, or for want of any statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence. Section: 23 Orders for amendment of indictment, separate trial and postponement of trial 30/06/1997 (1) Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice. (2) Where an indictment is so amended a note of the order for amendment shall be endorsed on the indictment. (3) Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment. (4) Where, before trial or at any stage of a trial, the court is of opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Ordinance to amend an indictment or to order a separate trial of a count, the court shall make such order as to the postponement of the trial as appears necessary. (5) Where an order of the court is made under this section for a separate trial or for the postponement of a trial- (a) if such an order is made during a trial the court may order that the jury are to be discharged from giving a verdict on the count or counts the trial of which is postponed or on the indictment, as the case may be; and (b) the procedure on the separate trial of a count shall be the same in all respects as if the count had been found in a separate indictment, and the procedure on the postponed trial shall be the same in all respects (if the jury has been discharged) as if the trial had not commenced; and (c) the court may make such order as to admitting the accused person to bail and as to the enlargement of recognizances and otherwise as the court thinks fit. (6) Any power of the court under this section shall be in addition to and not in derogation of any other power of the court for the same or similar purposes. (17 of 1919 s. 6 incorporated) [cf c. 90 s. 5 U.K.] Section: 24 (Repealed 35 of 1976 s. 7) 30/06/1997 Section: 24A When indictment shall be preferred 30/06/1997 (1) Subject to subsection (2) no indictment charging any person with an indictable offence shall be preferred unless- Cap CRIMINAL PROCEDURE ORDINANCE 15